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- Unreported Judgment
CHILDRENS COURT OF QUEENSLAND
R v WGS  QChC 37
Mareeba Childrens Court
4 November 2019 (delivered ex tempore)
Brisbane Childrens Court
4 November 2019
CRIMINAL LAW – SENTENCE – SENTENCING OF JUVENILES – application for sentence review – where the applicant was convicted and sentenced to 12 months probation with a special condition for 11 offences – where the applicant was further convicted and sentenced to a restorative justice order in respect of five other offences – where the applicant was aged 12 at the time of offending – where the applicant had spent 76 days in presentence custody – whether the special condition imposed on the probation order was within the power of the learned sentencing magistrate – whether the sentence was excessive in the circumstances
Youth Justice Act 1992 (Qld) s 2, s 3, s 118, s 122, s 150, 175, s 193
R v SCU  QCA 198
P Dent (sol) for the applicant
M Andronicus (sol) for the respondent
Legal Aid Queensland for the applicant
Office of the Director of Public Prosecutions for the respondent
- HIS HONOUR: This is an application for sentence review in respect of the applicant WGS. The applicant pleaded guilty to the charges set out in the Outline of Submissions on behalf of the Applicant at [2.1], namely:-
- (1)trespass - entering or remain in yard or place for business (23/10/2018);
- (2)enter dwelling and commit indictable offence (26/10/2018);
- (3)enter premises and commit indictable offence (26/10/2018);
- (4)trespass - entering or remain in yard or place for business (19/11/2018);
- (5)enter dwelling and commit indictable offence (06/01/2019);
- (6)receiving tainted property (15/01/2019);
- (7)enter premises and commit indictable offence (21/01/2019);
- (8)trespass - entering or remain in yard or place for business (24/01/2019);
- (9)enter dwelling and commit indictable offence (07/02/2019);
- (10)unlawful use of motor vehicles, aircraft or vessels – use (7/02/2019);
- (11)trespass - entering or remain in yard or place for business (10/02/2019);
- (12)enter dwelling and commit indictable offence (14/02/2019);
- (13)enter dwelling and commit indictable offence (11/05/2019);
- (14)enter dwelling with intent (15/05/2019);
- (15)enter dwelling and commit indictable offence (28/05/2019); and
- (16)enter dwelling with intent (29/05/2019).
- The applicant was convicted and sentenced at the Mareeba Childrens Court on 31 July 2019, placed on 12 months probation for 11 of the offences and a restorative justice order for five of the offences. A conviction was not recorded.
- The applicant is an aboriginal child, born on 10 August 2006, and was 12 years old at the time of the offending and sentence. He had a relevant criminal history, including four previous appearances before the court, with orders including good behaviour orders, a dual 12 month probation and restorative justice order, and more recently (as at sentence) a six month intensive supervised order.
- The circumstances of the offending, which are deeply concerning, are set out at paragraph 4.1 of the Outline of Submissions on behalf of the Applicant as follows:
“Trespass - entering or remain in yard or place for business (23/10/2018)
At approximately 7:15am the applicant entered a private yard and peered through a window.
Enter dwelling and commit indictable offence (26/10/2018)
At about 8am on 26 October 2018 the applicant approached the residence of a 76-year-old man and sought his assistance in relation to a graze. A short time later the victim noticed that his cigarettes and light had been taken form [sic] the garage.
Enter premises and commit indictable offence (26/10/2018)
The applicant entered the abovementioned victim’s vehicle and stole a $100 note.
Trespass - entering or remain in yard or place for business (19/11/2018)
At about 2:30pm on 19 November 2019 [sic] the applicant attended a block of units and approached the front door of a unit before being disturbed by the occupant. The application [sic] decamped and was observed by the occupant in the rear area of unit 4 going through property.
Enter dwelling and commit indictable offence (06/01/2019)
At 11:45am on 6 January 2019 the applicant with two others entered the home of a 64-year-old man through an ajar window and stole $20 cash and $40 in commemorative commonwealth games coins.
Receiving tainted property (15/01/2019)
On or about 15 January 2019 the applicant possessed a northern star pushbike stolen from the garage of an 84-year-old man.
Enter premises and commit indictable offence (21/01/2019)
At about 2:40pm on 21 January 2019 the applicant and two other juveniles entered [the] victim store whilst it was open for trade with intent to steal and stole $200 from a handbag located at the rear of the store.
Trespass - entering or remain in yard or place for business (24/01/2019)
At about 5:15pm on 24 January 2019 the applicant and two other juveniles gained entry to the underneath area of department of community housing and homelessness services. The[y] were located by staff and decamped.
Enter dwelling and commit indictable offence (07/02/2019)
At about 2pm on 7 February 2019 the applicant opened a closed but unlocked garage door and removed a 50cc 2018 motorcycle.
Unlawful use of motor vehicles, aircraft or vessels – use (7/02/2019)
The applicant was witnessed on or about 7 February 2019 riding a stolen 50cc 2018 motorcycle in parklands. The vehicle has not been recovered.
Trespass - entering or remain in yard or place for business (10/02/2019)
On 10 February 2019 the applicant and 2 other juveniles have gained entry to a private function area of the Kuranda Hotel. The juveniles utilised the pool and billiards table for approximately half an hour.
Enter dwelling and commit indictable offence (14/02/2019)
At about 11am on 14 February 2019 the applicant kicked a ball into the yard of the 21-year-old male victim. He knocked on the front door[. W]hen no one answered he entered the dwelling and stole a modem, Nixon wristwatch, gel toy pistols, Nike shoes, house keys and garage remote. The watch was recovered.
Enter dwelling and commit indictable offence (11/05/2019)
At an unspecified time on 11 May 2019 the applicant entered the dwelling of a 76-year-old woman of ill health whilst she was asleep and stole $90 and a mobile phone case from the victim’s handbag.
Enter dwelling with intent (15/05/2019)
At about 4:15pm on 15 May 2019 the applicant attended the dwelling of an 84-year-old woman and slide [sic] open a glass window before being disturbed.
Enter dwelling and commit indictable offence (28/05/2019)
Between approximately 10am and 1pm on 28 May 2019 the applicant entered the victim’s dwelling and stole a small amount of tobacco in a tin and a free standing safe.
Enter dwelling with intent (29/05/2019)
At an unspecified time on 29 May 2019 the applicant with another juvenile entered the home of an 81-year-old woman. They were disturbed by the occupant and decamped.”
The Law - Sentence Reviews
- A Childrens Court judge may review the sentence order of the Childrens Court magistrate. This review must be by way of a rehearing on the merits, and must be conducted expeditiously and with as little formality as possible. This court may have regard to the record of the proceedings before the Childrens Court Magistrate and any further submissions and evidence by way of affidavit or otherwise.
The Law - Sentencing of Children
- The Youth Justice Act 1992 (Qld) (‘YJA’) provides a code for dealing with children, with the charter of justice principles underpinning the operation of the YJA. This court is obliged to have regard to the sentencing principles contained within YJA s 150 and guidance on the approach is set out in R v SCU  QCA 198 per Sofronoff P, at .
Grounds of review
- The submission is made that the combination of 12 months probation and a restorative justice order was excessive in the circumstances, with insufficient weight given to the child’s age, general sentencing principles, time spent in pre-sentence custody and that the special condition imposed on the probation order did not relate to the offences for which it was imposed.
- In oral submissions, the further matters teased out and relevant to the excessive sentence order were: the failure of the learned magistrate to take account of totality, and the lack of appreciation of the effective head sentence served by the child (by way of remand pre-sentence) of 76 days, which, at 50 per cent, would be the equivalent of a detention order of 152 days (approximately five months).
- The probation order of 12 months was the maximum available to the learned sentencing magistrate. Undoubtedly, the offences were concerning for a young child with relevant criminal history, but the nature of the offending seems to have received too much emphasis in the sentencing process, without the court recognising the limitations in sentencing a 12 year old young aboriginal boy, and in particular, failing to recognise the issues of totality (the overlap of this offending with previous offending for which sentences had been imposed) and the imposition of the maximum period of probation.
- Pragmatically and appropriately in my view, the respondent does not oppose the sentence review, but does submit that the probation order should be longer than that submitted for by Ms Dent, to provide a longer period of supervision. The respondent does not oppose removing the curfew condition imposed on the original probation order, given that it does not comply with YJA s 193(2) which empowers the court to impose a condition on probation that the court considers necessary or desirable, but only for, “preventing a repetition by the child of the offence in relation to which the order was made… or the commission by the child of other offences.”
- None of the offences before the court were alleged to have occurred between the hours of the curfew imposed on the probation order, and therefore the special condition was not within the terms of YJA s 193(2). Unfortunately, as is frequently the case, there were no submissions invited at sentence as to the appropriateness of the condition, and the learned sentencing magistrate’s attention was not, therefore, brought to the provisions of YJA s 193(2).
- Although the charges have been split between two orders, no issue is taken as to the applicability of the restorative justice referral for some of the charges.
- The submission by Ms Dent for the applicant is that the probation order should be truncated to three months (rather than 12 months) and there should be no special conditions. The restorative justice order imposed at first instance (it is submitted) should continue.
- In my view, as I’ve indicated, it’s clear that the learned sentencing magistrate failed to take account of the issues of totality and, in particular, proportionality, and by imposing the maximum probation period, has imposed a sentence that is disproportionate to the offending, given the substantial period of pre-sentence custody served by the child (a total of 76 days, the equivalent of a 152 day detention order served at 50 per cent). This then resulted in an error in the sentencing process in imposing the probation order at 12 months with the special condition.
- In all of the circumstances, the application should be granted, the probation order discharged and a fresh probation order imposed without special conditions. Although I understand Mr Andronicus’ submission, the difficulty with his submission of a period of nine months is that it still runs the risk of setting the child up to fail, and fails to fully factor in the issue of proportionality.
- Accordingly, I make the following orders:
- (1)Application for sentence review granted.
- (2)Discharge the probation order imposed at the Mareeba Childrens Court on 31 July 2019.
- (3)In lieu, impose a three-month probation order (with no special conditions) for the offences for which the original 12-month probation order was imposed.
- (4)Otherwise affirm the sentence imposed at the Mareeba Childrens Court on 31 July 2019.
 Exhibit A - Affidavit of Peta Dent, affirmed 1 November 2019.
 Outline of Submissions on behalf of the Applicant, filed 1 November 2019, .
 Youth Justice Act 1992 (Qld) s 118.
 Youth Justice Act 1992 (Qld) s 122.
 Youth Justice Act 1992 (Qld) ss 2(b), 3(2).
 Outline of Submissions on behalf of the Applicant, filed 1 November 2019, .
 Youth Justice Act 1992 (Qld) s 175(1)(d).
 Outline on behalf of the Respondent, filed 4 November 2019, .
- Published Case Name:
The Queen v WGS
- Shortened Case Name:
The Queen v WGS
 QCHC 37
04 Nov 2019